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«EUI Working Papers RSCAS 2012/23 ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Global Governance Programme-18 MULTILEVEL GOVERNANCE OF INTERDEPENDENT ...»

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Petersmann’s empirical and normative counter-argument was that European citizens – by limiting multilevel governance in the EU, the EEA as well as in the European Convention on Human Rights (ECHR) by constitutional, legislative, executive and judicial ‘institutionalization of public reason’ and multilevel judicial protection of cosmopolitan rights - had secured more regional public goods and constitutional rights than they had ever enjoyed before. Even if authoritarian states and ‘majoritarian democracies’ would continue prioritizing ‘parliamentary freedom’ and majority politics over rightsbased conceptions of democratic self-government of citizens, their insistence on ‘constitutional nationalism’ and reciprocal ‘Westphalian bargaining’ offered no effective, legitimate strategies for limiting the collective action problems of global ‘aggregate public goods’. ‘Path-dependence’ was no justification of the current reality of power politics protecting vested interests (e.g. in under-regulation of financial markets and environmental pollution). The keynote speech by P. Lamy seemed to support the argument that lack of democratic legitimacy of ‘Westphalian multilevel governance’ beyond constitutional democracies had to be compensated by 'participatory democracy' promoting 'primary democratic legitimacy' of the global economy based on protection of cosmopolitan rights and principles of democratic governance in international institutions (e.g. principles of transparency, accountability, access to information and to judicial remedies, inter-parliamentary meetings, principles of ‘necessity’, ‘proportionality’ and reason-giving, etc.). Just as the '2011 Arab Spring' confirmed the historical experience of earlier (e.g. American and French) 'human rights revolutions' that citizens had to struggle for national public goods like constitutional democracy and rules-based social justice, transforming Westphalian 'international law among states' into cosmopolitan IEL required legal and judicial struggles by citizens for their cosmopolitan rights. The progressive transformation of international human rights and investment law through multilevel judicial protection of human and economic rights confirmed that cosmopolitan ‘access rights’ promoting non-discriminatory supply and consumption of transnational public goods were normatively justifiable and politically feasible.

The ‘blind men’ and the need for interdisciplinary research One major conclusion of the conference is that – as in the story of the blind men touching different parts of an elephant and describing the animal in mutually contradictory terms – the competing economic, political, legal and constitutional conceptions of ‘public goods’ and of ‘international law’ need to be integrated in order to promote more ‘cosmopolitan public reason’ necessary for mobilizing citizens to assert ‘democratic ownership’ for constituting, limiting, regulating and justifying multilevel political, legal and judicial governance of ‘aggregate public goods’. Theories of justice, human rights and constitutional law require justifying governance for public goods in terms of justice and judicial remedies. Arguably, the universal human rights obligations of UN member states, the related requirement of a ‘4-stage-sequence’ of constitutional, legislative, executive and judicial protection of public goods, and the need for governing interdependent public goods with due respect for legitimate ‘constitutional pluralism’ at national and international levels are ‘constitutional building-blocks’ for democratic, multilevel governance of international public goods in the 21st century. The ‘human condition’ of ubiquitous conflicts of interests (e.g. between emotions, rational egoism and limited reasonableness inside human minds) and related abuses of power remain the central ‘constitutional challenge’ requiring ‘constitutionalization’ of all human interactions at national, transnational and international levels. Yet, ‘constitutionalizing’ international law implies normative-theoretical conceptions of the role of ‘legal principles’, individuals, political and judicial institutions, human rights and ‘state consent’ in international law that remain deeply contested. Communitarian theories of ‘majoritarian democracy’, for instance, contest the human rights argument that cosmopolitan ‘access

Introduction and Overview

rights’ and judicial remedies are necessary not only as ‘external limitations’ of transnational abuses of power by holding governments accountable for protecting individual autonomy, responsibility, public goods and market-driven use of decentralized knowledge of citizens that ‘Westphalian rulers’ inevitably lack; they are even more necessary as ‘reasonable self-commitments’ empowering, educating and constraining individual autonomy, promoting ‘public reason’ of social communities, and voluntary compliance with rules that are supported as promoting fairness and justice. The hundreds of national constitutional regimes and regional and worldwide treaty regimes for protecting public goods, like the ubiquity of ‘governance failures’ in coordinating national and international public goods and regulating their ‘horizontal’ as well as ‘vertical interdependencies’, offer a vast field for empirical and comparative research on interdependent public goods. The more economic and environmental resources are becoming scarce in relation to the expanding recognition of civil, political, economic, social and cultural human rights and cosmopolitan and democratic demands of citizens, the more important becomes justifying public goods theories not only in terms of procedural fairness and ‘due process of law’, but also in terms of distributive justice and cosmopolitan rights of citizens (cf. Petersmann, 2011a). It remains an open question whether mankind will be capable to institutionalize ‘public reason’ enabling human beings to constitute, limit, regulate and justify multilevel governance of interdependent public goods more effectively in the 21st century.





The laboratory of regional law: the Eurozone as a white elephant?

Rights-based European constitutional democracies often perceive EU law, EEA law, the ECHR and European Free Trade Area law and jurisprudence as advanced laboratories for designing more ‘democratic international law’ protecting international public goods more effectively for the benefit of citizens. European legal doctrine and judicial methodologies (such as ‘proportionality balancing’ of economic and human rights) have overcome the simplifications of economic ‘public goods theories’ and the neglect of human and constitutional rights by ‘Westphalian legal regimes’ as well as by Anglo-Saxon ‘common law’ traditions. 10 European integration law increasingly influences legal and judicial attempts in jurisdictions beyond Europe to limit abuses of public and private power. Yet, as illustrated by the judgment of the International Court of Justice of 3 February 2012 and by numerous WTO dispute settlement findings against EU regulations, European ‘transnational legal innovations’ also provoke adverse responses aimed at limiting abuses of power inside Europe. 11 The incomplete regulation and supervision of the European Monetary Union and the persistent violations of the EU treaty disciplines for national fiscal and debt policies (e.g. as defined in TFEU, 2009, Article 126 and Protocol No.12 on the excessive deficit procedure) by most of the 17 Eurozone member states have entailed economic, social and legal crises undermining the legitimacy of multilevel governance in the Eurozone. It remains uncertain whether the new EU Regulations, Directives and treaties among Eurozone members aimed at strengthening fiscal, debt and economic governance can realize their declared goal of ‘stronger national ownership of commonly agreed rules and policies’ so as to prevent private and public debt defaults and other breaches of the law. 12 Without more economic growth, the On the higher levels of constitutional and judicial protection of ‘negative’ and ‘positive liberties’ in European economic law compared with Anglo-Saxon common law and constitutional law traditions, see Petersmann, 2012, chapters III and IV).

Cf. ICJ, Jurisdictional Immunities of the State (Germany v Italy) (2012), finding, inter alia, ‘that the Italian Republic has violated its obligations to respect the immunity which the Federal Republic of Germany enjoys under international law by allowing civil claims to be brought against it based on violations of international humanitarian law committed by the German Reich between 1943 and 1945’.

Cf. the five Regulations and the Council Directive of November 2011 (OJ 2011 L 306) Regulation (EU) 1173/2011, Regulation (EU) 1174/2011, Regulation (EU) 1175/2011, Regulation (EU) 1176/2011, Regulation (EU) 1177/2011, Council Directive 2011/85/EU) on the strengthening of budgetary and economic surveillance in the Euro area, which explicitly aim at ‘stronger national ownership of commonly agreed rules and policies’ so as to render national compliance with EU law more effective. The 2012 draft ‘Treaty on Stability, Coordination and Governance in the Economic and

Ernst-Ulrich Petersmann

European ‘social model’ risks becoming unsustainable. Just as multilevel governance conceptions of ‘European public goods’ remain contested, the multilevel governance regimes in regional economic agreements in Africa, Asia and in the Americas require constant ‘balancing’ and re-adjustment of national, regional and worldwide regulation and judicial review of claims to unilaterally protect public goods across frontiers (e.g. by border carbon tax adjustments, extension of carbon emission trading to third countries). It is this antagonistic disorder of individual, national, bilateral and regional ‘trial and error’ that may ultimately promote a new ‘public reason’ enabling more coherent multilevel governance and regulation of public goods. As emphasized also in F. Fukuyama's recent book on The Origins of Political Order (2011), describing the evolution of the modern ‘rule of law state’ as an antagonistic learning process triggered by increasing limitation of political powers and of their ‘rule by law’ through competing religious, civil and political powers insisting on transnational ‘rule of law’ (e.g. Roman law and ecclesiastical law as jus commune in Medieval Europe), the promotion of transnational rule-of-law systems is likely to be of crucial importance for more effective, multilevel governance of interdependent ‘aggregate public goods’. The Florence conference revealed an obvious need for promoting education, research and innovation on multilevel governance and related theories of interdependent public goods in order to contain the ‘arrogance of power’ and interest group politics dominating the Westphalian system of international law. If, as suggested by Albert Einstein, madness is characterized by repeating the same method time and again in the hope of producing a different outcome, the 21st century requires moving away from ‘Westphalian power politics’ as the prevailing governance paradigm in UN and WTO institutions for the collective protection of global public goods.

(Contd.) Monetary Union’ (‘TSCG’, 2012) likewise aims at rendering the existing EU legal disciplines more effective in the domestic legal systems of Eurozone member states.

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References Albin, C. (2001) Justice and fairness in international negotiation. Vol. 74. Cambridge University Press.

Albin, C. (2003) 'Getting to Fairness: Negotiations over Global Public Goods', in Inge Kaul et al.

(eds.) Providing Global Public Goods. Managing Globalization. New York: Oxford University Press.

Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (2012) [online]. Available from: http://european-council.europa.eu/media/639235/st00tscg26_en12.pdf (Accessed 5 March 2012).

Barfield, C. E. (2001) Free trade, sovereignty, democracy: the future of the World Trade Organization. Washington: AEI Press.

Fukuyama, F. (2011) The Origins of Political Order: From Prehuman Times to the French Revolution. Profile Books.

Kaul, I. et al. (eds.) (1999) Global public goods: international cooperation in the 21st century. Oxford University Press.

Kaul, I. et al. (eds.) (2003) Providing Global Public Goods: Managing Globalization. Oxford

University Press. [online]. Available from:

http://econpapers.repec.org/bookchap/oxpobooks/9780195157413.htm (Accessed 14 March 2012).

Lamy, P. (2011) Letter to Professor De Schutter. [online]. Available from:

http://www.wto.org/english/news_e/news11_e/agcom_14dec11_e.htm#letter.

Maskus, K. E. & Reichman, J. H. (2005) International Public Goods And Transfer Of Technology Under A Globalized Intellectual Property Regime. Cambridge University Press.

Petersmann, E.-U. (2011) International Economic Law, ‘Public Reason’, and Multilevel Governance of Interdependent Public Goods. Journal of International Economic Law. 14 (1), 23–76.

Petersmann, E.-U. (2012) International Economic Law in the 21st Century. Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods. Oxford: Hart Publishing.

Rodrik, D. (2001) The Globalization Paradox: Democracy and the Future of the World Economy.

New York: W. W. Norton & Company.

de Schutter, O. (2011) The WTO and the Post-Global Food Crisis Agenda: Putting Food Security

First in the International Food System. [online]. Available from:

http://www.wto.org/english/news_e/news11_e/deschutter_2011_e.pdf.

TEU (2009) Treaty on European Union, OJ 2008, C 115/13.

TFEU (2009) Treaty on the Functioning of the European Union, OJ 2008, C 115/47.

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Dear President, Distinguished guests, Ladies and Gentlemen, It gives me great pleasure to be here today to close this conference on ‘Multilevel governance of interdependent public goods.’ Since its establishment in the early 70's, the European University Institute of Florence has remained true to its founding values of being a leading research centre on European integration and governance issues. Strongly anchored in Europe, but open to the world, the Institute is a privileged observatory of governance issues. What better place than this one to reflect on the question of global governance?



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